Single-Publication Rule Limitations Aid Defamation Plaintiffs
In Ciolino v. Simon, 2021 IL 126024, the Illinois Supreme Court clarified the reach of the Illinois single-publication rule, finding that the plaintiff’s defamation claim was not time-barred even though the first publication of the allegedly defamatory documentary Murder in the Park occurred outside the one-year period defined by Illinois law.
The court held that the screenings of Murder in the Park at New York, Cleveland, and Chicago film festivals were not subject to the single-publication rule because each screening was a conscious and independent choice to publish the allegedly defamatory statements and thus each screening began anew the statute of limitations period.
The decision allows the defamation suit brought by Paul Ciolino, a private investigator for the Innocence Project at Northwestern University’s Medill School of Journalism, to move forward. Ciolino’s lawsuit alleged it was defamatory for the documentary to describe him as having engaged in untoward investigation techniques. The case has been closely monitored because Mr. Ciolino’s work on the case, ultimately exonerating Anthony Porter for the 1982 murders of Jerry Hillard and Marilyn Green, is regarded as the impetus for the moratorium on the death penalty in Illinois. In addition to the cultural lightning rod at the center of the case, the decision serves as an important signpost for how Illinois courts will apply defamation law to rapidly changing media markets in the years to come.
Facts of the Case and Procedural Background
In November 2014, Andrew Hale’s documentary Murder in the Park was screened at the DOC NYC film festival and, prior to the festival, was advertised by several media outlets. 2021 IL 126024 at ¶13. The claim advanced by Murder in the Park, and a similarly themed book entitled JUSTICE PERVERTED: HOW THE INNOCENCE PROJECT OF NORTHWESTERN UNIVERSITY’S MEDILL SCHOOL OF JOURNALISM SENT AN INNOCENT MAN TO PRISON authored by codefendant William Crawford, is that plaintiff Paul Ciolino and Northwestern University’s Professor David Protess engaged in an ends-justified-the-means approach to exonerate their client Anthony Porter. Id.
Murder in the Park contains interviews from defendants Simon, Hale, Ekl, Sotos, Delorto, Crawford, and Alvarez discussing what they believe to be inappropriate investigation practices employed by Ciolino in Porter’s case. 2021 IL 126024 at ¶10. Specifically, the documentary alleges that Ciolino obtained a coerced confession from Alstory Simon by posing as an officer, stating that Simon would receive the death penalty if he did not confess, and promising to provide an attorney for Simon to represent him in his subsequent murder trial when Ciolino knew the recommended attorney was going to convince Simon to plead guilty and refrain from challenging Simon’s confession to Ciolino. 2021 IL 126024 at ¶6; Brief of Appellee at *3, Ciolino, supra, 2021 IL 126024. Porter’s conviction was vacated as a result of the new evidence discovered by Ciolino, and Simon was subsequently convicted for the murders. Following an internal investigation into the Innocence Project’s investigation, the Cook County State’s Attorney formally abandoned all charges against Simon and issued a public statement condemning Ciolino’s role in the investigation. 2021 IL 126024 at ¶8.
In March 2015, Murder in the Park followed up its debut at the DOC NYC film festival with a screening to sold-out crowds at the Cleveland International Film Festival. 2021 IL 126024 at ¶14. In July 2015, Murder in the Park was additionally screened in Chicago at the Gene Siskel Film Center. Id. Finally, on February 17, 2016, the documentary was purchased by Sundance Select and aired for the first time on Showtime. 2021 IL 126024 at ¶25. Ciolino submitted an affidavit stating that it was not until after the national release of the documentary on Showtime that he became aware of the allegedly defamatory statements contained in Murder in the Park. Id.
On January 2, 2018, Ciolino filed a complaint in the Circuit Court of Cook County alleging defamation, false light, intentional infliction of emotional distress, and civil conspiracy for the production and contents of Murder in the Park. 2021 IL 126024 at ¶12. Ekl filed a motion to dismiss pursuant to §2-619.1 of the Code of Civil Procedure (735 ILCS 5/2-619.1) asserting that Ciolino’s claims were untimely because the claims raised in federal court were outside the one-year statute-of-limitation period. Id. The circuit court granted the motions to dismiss, finding that the relevant accrual date for the claims was the DOC NYC film festival. 2021 IL 126024 at ¶15. The appellate court reversed the circuit court’s ruling that Ciolino’s claims against Ekl were time-barred based on a finding that the discovery rule applied to Ciolino’s claims, tolling the statute of limitations until Ciolino knew or should have known of the publication of Murder in the Park. 2021 IL 126024 at ¶16. The Illinois Supreme Court granted Ekl’s petition for leave to appeal on the statute-of-limitations question. 2021 IL 126024 at ¶17.
The Single-Publication Rule
The Illinois Supreme Court held that the focus on the discovery rule by the appellate court was based on the unsupported assumption that the single-publication rule applied and found that every screening of Murder in the Park was an independent publication “retriggering” the statute of limitations. 2021 IL 126024 at ¶46.
The single-publication rule was adopted in Winrod v. Time, Inc., 334 Ill.App.59, 78 N.E.2d 708 (1st Dist. 1948), to replace the common-law rule that “each delivery and sale of an article containing defamatory material was considered a publication that, defenses aside, gave rise to a separate cause of action.” 2021 IL 126024 at ¶30, quoting Winrod, 78 N.E.2d at 708. The Winrod court, even as early as 1948, recognized that the common-law rule was “ill-suited to the needs of a culture demanding mass publication” when newspapers, books, and magazines were distributed nationally upon release and then republished by secondary markets. Id. The Winrod court, instead, found that “where large distributions of published matter are involved, . . . the cause of action accrues, for the purpose of the statute of limitations, upon the first publication, when the issue goes into circulation generally.” 2021 IL 126024 at ¶31, quoting Winrod, supra, 78 N.E.2d at 710. This “single publication” was used as the accrual date to “escape multiplicity of suits and to make effective the statute of limitations.” Winrod, supra, 78 N.E.2d at 709. In 1959, the Illinois legislature adopted the Uniform Single Publication Act, codifying the rule established in Winrod. 2021 IL 126024 at ¶34.
The single-publication rule, however, can raise difficult questions on whether publications constitute “republications” that retrigger the statute of limitations or a mere repetition of the single issue. 2021 IL 126024 at ¶¶31 – 37. The critical inquiry distinguishing republication from repetition, according to Winrod, is whether the act of the defendant was a conscious and independent act with intent to republish the defamatory statements. 2021 IL 126024 at ¶32, quoting Winrod, supra, 78 N.E.2d at 713. For instance, an “individual who sends the same letter to different persons at the same or another time, consciously and intentionally and independently does so,” yet “in the case of a newspaper, as the circulation is considered one of the chief items of damage, and plaintiff recovers for all the distribution, no conscious intent arises until the defendant consciously as a second edition republishes the article.” [Emphasis in original.] Id.
Illinois Supreme Court’s Analysis: Republication vs. Miscellaneous Repetition
The Illinois Supreme Court held that Ciolino’s defamation and false light publicity claims were timely because Murder in the Park’s screenings in Cleveland and Chicago constituted republications of the allegedly defamatory language. 2021 IL 126024 at ¶46.
The finding that the single-publication rule was not applicable to the subsequent screenings of Murder in the Park was dispositive. Under Illinois law, a cause of action for defamation or false light publicity must be filed within one year of the cause of action’s accrual. 735 ILCS 5/13-201; 2021 IL 126024 at ¶46. The accrual date for defamation and false light publicity claims is the publication date. 2021 IL 126024 at ¶19. The original publication of Murder in the Park was on November 17, 2014, at the DOC NYC film festival, while the latest publication date if the single-publication rule were not to apply was either the July 15, 2015, screening in Chicago or the mass publication on Showtime on February 17, 2016. 2021 IL 126024 at ¶¶24 – 25. By virtue of the Illinois savings statute, Ciolino’s complaint was deemed to be filed on April 27, 2016, because he originally raised the defamation claim in his counterclaim in a separate suit filed by Simon against Ciolino — more than a year after the initial screening at DOC NYC, but less than a year after the screening in Chicago or the mass publication by Showtime.
The court distinguished the screenings of Murder in the Park from prior cases applying the single-publication rule. Unlike media that was mass-published to a general or national audience upon its initial release, the court reasoned that Murder in the Park was first shown to a limited local audience at the DOC NYC film festival. 2021 IL 126024 at ¶40. The subsequent screenings in Cleveland and, critically, at the Gene Siskel Film Center in Chicago were discrete actions undertaken with the intent to republish the defamatory language. Id.
The choice of Murder in the Park’s producers to screen the film at different film festivals was specifically calculated to reach “new and distinct audiences at different locations, dates, and times.” Id. The court relied on the RESTATEMENT (SECOND) OF TORTS in holding that the single-publication rule does not include separate aggregate publications on different occasions. 2021 IL 126024 at ¶40. See RESTATEMENT (SECOND) OF TORTS §577A, cmt. D (1977) (“Thus if the same defamatory statement is published in the morning and evening editions of a newspaper, each edition is a separate single publication and there are two causes of action. The same is true of a rebroadcast of the defamation over radio or television or a second run of a motion picture on the same evening . . . in these cases the second publication is intended to and does reach a new group.” [Emphasis added.]).
Additionally, the court rejected the argument that the screenings were uncontrollable miscellaneous copies thrust into the stream of commerce. While the single-publication rule “certainly applies where defamatory material is mass-published to the public in a medium where the delayed receipt of the defamatory material is incidental to the medium’s mode of distribution,” the Court reasoned that the subsequent screenings were not akin to the situation in which “miscellaneous copies of a magazine issue containing defamatory material incidentally make their way into the hands of third parties on a later date.” 2021 IL 126024 at ¶¶38, 42. Rather, the choice to distribute the film to a small local audience prior to national release made it entirely possible for the producers to prevent future disseminations of the allegedly defamatory statements to the different audiences in Cleveland and Chicago. 2021 IL 126024 at ¶¶41 – 42.
Lastly, the court reasoned that the purposes underlying the single-publication rule were not served by applying the rule to encompass the subsequent screenings of Murder in the Park in Cleveland and Chicago. There is no risk, for instance, that such a finding would create “ungovernable piecemeal liability and [a] potentially endless tolling of the statute of limitations” because a bright line existed as to the independent decisions to screen the documentary at each venue. 2021 IL 126024 at ¶43, quoting Long v. Walt Disney Co., 116 Cal.App.4th 868, 10 Cal.Rptr.3d 836, 841 (2004). In fact, the court reasoned, “[i]f the decision maker has sustained her maximum liability when she first broadcasts the [media], she has no motivation to limit the injury.” 2021 IL 126024 at ¶40, quoting Lehman v. Discovery Communications, Inc., 332 F.Supp.2d 534, 539 (E.D.N.Y. 2004).
The court concluded (1) that the cause of action for defamation and false light did not violate the statute of limitations because the single-publication rule was not applicable to the subsequent screenings and (2) that the causes of action were filed within one year of the Chicago screening of Murder in the Park. 2021 IL 126024 at ¶46.
Effects of the Case
The single-publication rule was adopted in Winrod, supra, to ensure that common-law defamation claims reflected the changing media market in 1948. The decision in Ciolino, supra, may also serve as a signal for how modern courts will handle defamation claims in a similarly volatile media market moving forward. The decision is issued against the backdrop of an explosion in alternative distribution models for media. Films, books, newspapers, and music are all delivered on the Internet, which has allowed media to reach national, and even international, consumers. However, the sheer reach of media has also been complemented by the increased ability of local artists to produce media for local markets because of advancements in modern production equipment. Under Illinois law, these media producers will need to be conscious of the potential increased liability for defamation suits created by a choice to begin distribution at a local level and subsequent republications of potentially defamatory content.
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